Earlier this year, the European Commission decided to ban titanium dioxide as a food additive in the European Union, with a six-month phasing-out period that culminated in a full ban as of August 7, 2022. The decision was based on a recent assessment by the European Food Safety Authority, which had raised concerns over the
Consumer Products
“100% Recyclable” Labels Are Not False Just Because Not All Plastic Bottles Are Recycled
By Kaixin Fan, Cort Lannin & Ashley Simonsen on
Posted in Consumer Products, Food and Beverage
A court in the Northern District of California recently dismissed a complaint brought against several beverage companies, including Coca-Cola, on behalf of a putative class of consumers and the Sierra Club. Swartz v. Coca-Cola Co., No. 21-cv-04643-JD, 2022 U.S. Dist. LEXIS 209641 (N.D. Cal. Nov. 18, 2022). Asserting claims under California and common law, plaintiffs alleged that the “100% recyclable” representation on single-use plastic bottles supplied by defendants is false and misleading because not all plastic bottles discarded into recycling bins are processed into reusable material. Plaintiffs’ complaint cited to studies showing that recycling facilities in the U.S. lack the capacity to process most of the plastic waste generated, and not all plastic processed turns into material for reuse. Resolving defendants’ motion to dismiss, the court acknowledged that “the question of consumer deception may be a factual matter unsuitable for resolution in a motion to dismiss,” but concluded that plaintiffs here failed to meet “the initial burden of pleading factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged as informed by judicial experience and common sense.” …
First Circuit Holds Alleged Overpayment Enough for Article III Standing
By Dillon Grimm & Andrew Soukup on
The First Circuit recently revived consumer deception claims challenging the safety and testing of a car booster seat manufactured by Evenflo, in a case that potentially makes it easier for class-action plaintiffs to satisfy Article III’s standing requirements in the First Circuit when they only allege an economic injury. …
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Aspirational Statements of “Sustainability” Not Actionable Under D.C. Consumer Protection Statute
By Alyssa Vallar, Andrew Soukup & Ashley Simonsen on
As plaintiffs continue to rely on the District of Columbia Consumer Protection Procedures Act (“CPPA”) to bring greenwashing suits, a recent D.C. Superior Court decision imposes limits on their ability to allege that a company’s general commitments to “sustainability” can constitute actionable misrepresentations.…
District of New Jersey Continues Third Circuit Trend of Finding Mere Exposure to Toxic Substances in Consumer Products Insufficient for Standing
By Kaixin Fan & Ashley Simonsen on
The District Court for the District of New Jersey recently dismissed a putative class action alleging that defendants sold baby foods with high levels of heavy metals, holding that plaintiffs failed to plead an injury sufficient to support standing. In re Plum Baby Food Litigation, No. 1:21-cv-02417-NLH-SAK, 2022 WL 16552786 (D.N.J. Oct. 31, 2022). This decision adds to the list of cases in the Third Circuit holding that merely alleging exposure to toxic substances in consumer products, without more, is insufficient to establish Article III standing. See Covington’s prior blog post on the trend in the Third Circuit here.…
California Court of Appeal Allows “White Baking” Chips Claims to Proceed
By Regan Hines & Ashley Simonsen on
The California Court of Appeal recently reversed trial court judgments sustaining demurrers in two class action cases involving false advertising claims. In both cases the plaintiff alleged that he was misled to believe that “White Baking Morsels” or “White Baking Chips” contain white chocolate.
The defendants demurred on the ground that no reasonable consumer would believe that “White Baking” chips or morsels contain real white chocolate. The trial court agreed and entered judgment for the defendants. In both cases, the California Court of Appeal disagreed, holding that the plaintiff stated viable claims, and reversed.…
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“Critical Mistake” In Damages Model Sinks California Class Action
By Steve Petkis on
On July 29, Judge William Alsup of the Northern District of California issued a decertification order in a long-running class action dispute concerning Cricket Wireless’s 4G advertising, ruling that plaintiff’s counsel made “too critical a mistake” in fashioning their class-wide damages model. See Freitas v. Cricket Wireless, LLC, 2022 WL 3018061, at *6 (N.D. Cal. July 29, 2022).…
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Fudge Without Milkfat Isn’t “Fudged”
By James Holloway on
Posted in Consumer Products, Food and Beverage
Kellogg’s defeated yet another putative class action filed by prolific litigant Spencer Sheehan alleging that one of its Pop-Tarts products misleads consumers. See Reinitz v. Kellogg Sales Co., 2022 WL 1813891 (C.D. Ill. June 2, 2022).
Asserting state law consumer fraud theories, plaintiff argued that Kellogg’s Frosted Chocolate Fudge Pop-Tarts mislead consumers because they do not contain any fudge whatsoever. According to plaintiff, true fudge contains butter and milk (i.e. “milkfat”), but Kellogg’s instead uses cheaper and lower quality “vegetable oils and whey” substitutes. In support of these allegations, plaintiff pointed to a book by Molly Mills, a woman she described as “one of the today’s leading authorities on fudge.” But plaintiff’s reliance on Mills’s book ultimately proved fatal to her claims.
Court Allows False Advertising Claims Over Kroger’s “Smoked Gouda” to Proceed
By Nicole Patolai & Ashley Simonsen on
An Illinois federal court recently ruled that a Kroger shopper’s proposed class action lawsuit over “SMOKED GOUDA” cheese could proceed, holding that plaintiff’s interpretation of the label to mean the cheese was smoked over hardwood was not “inherently fanciful or unreasonable.”
The complaint, brought by Valerie Kinman under the Illinois Consumer Fraud and Deceptive Trade Practices Act (“ICFA”), alleges that the front label of the “SMOKED GOUDA” product is misleading because it “does not disclose that all of the Product’s smoked flavor is from liquid smoke, prepared by pyrolysis of hardwood sawdust, instead of being smoked over hardwoods.” In denying Kroger’s motion to dismiss the complaint for failure to plead reasonable consumer deception, the court reasoned that the word “smoked” has at least two meanings—(1) “cured over burning wood” or (2) “an adjective that describes a flavor”—and is therefore ambiguous. The phrase “distinctive, smoky flavor” on the front of the package did not resolve that ambiguity, moreover, because that phase, too, is subject to multiple interpretations, including that the cheese has such a flavor resulting from the process of smoking over hardwood.…
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Kellogg Beats Pop-Tarts Class Actions
By Ashley Simonsen & Jordan Moran on
On May 24, Kellogg Sales Co. defeated a third putative class action alleging that Strawberry Pop-Tarts mislead consumers, having defeated two other putative class actions in March. Represented by prolific plaintiffs’ firm, Sheehan & Associates, Stacy Chiappetta, Kelvin Brown, and Anita Harris each sued Kellogg after realizing that the filling in Strawberry Pop-Tarts contains not just strawberries, but also small amounts of dried pears, dried apples, and the food dye red 40. But two federal judges in Illinois and a third in New York have now agreed with Kellogg that the packaging of Strawberry Pop-Tarts is not misleading for the simple reason that the pastries in fact contain strawberries.…